Kaplan Pgs 64-74 Jury Trials and Motions

Question 1

How many jurors can a federal jury have?

Answer 1

6 to 12 and each must participate in the verdict

Question 2

What are the three categories of challenges for cause to excuse a juror?

Answer 2

– General disqualification
– implied bias
– actual bias

Question 3

What is involved in each of the three categories of challenges “for cause“ to excuse a juror?

Answer 3

– General disqualification: having a felony conviction or some other inherent disqualification
– implied bias: if the attorney believes a bias may exist [having a relationship with one of the parties]
– actual bias: the journal indicates in voir dire that he would use predetermined beliefs or principles to decide the case instead of facts

Question 4

How many peremptory challenges does each party get in federal court?

Answer 4

Three

Question 5

What are things that peremptory challenges may not be used for when excluding jurors?

Answer 5

Race, ethnicity, or gender

Question 6

If the opposing party objects to your peremptory challenges, what is the only basis that can happen on?

Answer 6

If they argue that the exclusion was because of racial, ethnic, or gender discrimination

Question 7

If the opposing party objects to your peremptory challenge, what do you have to do?

Answer 7

You must provide a non-discriminatory explanation for your strikes, or else rescind your strikes

Question 8

Is it possible for a party to request specific jury instructions for the court to give?

Answer 8

Yes, a party can file and furnish every other party written requests for the jury instructions at once the court to give at the close of evidence

Question 9

What must the court do with regard to its jury instructions before it issues the jury instructions?

Answer 9

It must inform the parties of the proposed instructions and give the parties an opportunity to object on the record and out of the hearing of the jury

Question 10

If a party wants to oppose potential jury instructions, how is that done?

Answer 10

This must be done on the records stating distinctly the matter that has been objected to and the grounds for the objection

Question 11

When do you need to make an objection to jury instructions?

Answer 11

On the record out of the jury is hearing before the instructions in arguments are delivered [or if you were not informed of the instruction before the opportunity to object, as long as you do it promptly after learning about the instruction that is OK]

Question 12

What is the key with regard to objecting to jury instructions?

Answer 12

The objection has to be made before, and not after the jury begins its deliberations. Once the jury begins deliberating, the time to object has passed

Question 13

How must any application to the court for an order be made?

Answer 13

By motion

Question 14

How must motions be made?

Answer 14

They must be in writing and state with particularly the grounds for the request as well as the request for relief

Question 15

What are the different grounds that a motion to dismiss can be made on?

Answer 15

– Lack of subject matter jurisdiction
– lack of PJ
– improper venue
– insufficient process or service of process
– failure to state a claim
– failure to join a party

Question 16

If you want to object to lack of PD, improper venue, or insufficient process or service of process, when do you have to make that motion?

Answer 16

In the defending party’s first response to the court, which is either a pre-answer motion to dismiss or an answer

Question 17

If a defendant make the motion to dismiss and doesn’t object to Pj, venue, or SOP, what happens?

Answer 17

That defence is waived and cannot later be included in the answer

Question 18

When can a motion to dismiss for failure to state a claim or failure to join the necessary party be made?

Answer 18

Any time before the trial ends

Question 19

Can lack of subject matter jurisdiction be raised even on appeal?

Answer 19

Yes

Question 20

What is rule 12b6?

Answer 20

Motion to dismiss for failure to state a claim upon which relief can be granted

Question 21

What is the mean for a case to be dismissed “with prejudice“ or “without prejudice“?

Answer 21

– With prejudice: the case is dismissed permanently and cannot be brought back to the court
– without prejudice: the case is not dismissed forever and it can be tried again

Question 22

What is necessary to bring a motion to dismiss for failure to state a claim upon which relief can be granted?

Answer 22

– The complete must fail to state a cognizable claim
– it must provide insufficient facts, or
– have an allegation that negates one or more elements of the cause of action

Question 23

If a case is dismissed because of failure to state a claim upon which relief can be granted, does that happen with or without prejudice?

Answer 23

With prejudice

Question 24

If you make a motion for a more definite statement, what does that mean and what is involved?

Answer 24

It means that the pleading is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects that you were complaining of in the details that you want. If the court orders a more definite statement to be made, the other person has 14 days to comply or else the court can strike the pleading

Question 25

What kind of things can a court strike from a pleading?

Answer 25

An insufficient defence or any redundant, immaterial, impertinent, or scandalous matter. The court can do this on its own or on a motion made by a party

Question 26

In essence, what is a motion for summary judgment?

Answer 26

It is a motion that challenges a claim or a defence on the merits

Question 27

Who can move for summary judgment, and what does it apply to?

Answer 27

Any party can move for this and it can apply to any individual issue or to the cause of action as a whole

Question 28

What is the timing for moving for some reason judgement and for a response to that?

Answer 28

Dash a party can move for summary judgement anytime before 30 days after the close of discovery – a party opposing this motion must file a response within 21 days after the motion is served or a responsive pleading is due, whichever is later – a reply may be filed within 14 days after the response is served

Question 29

What are the two ways that’s the moving party can make an argument for summary judgment?

Answer 29

- by pointing out holes in the opposing parties claims or defenses, or - by adducing new evidence showing that the claim or defence cannot be true

Question 30

If you are making a motion for judgement as a matter of law, what is the analysis for that?

Answer 30

The exact same analysis as for a summary judgement motion

Question 31

What is a motion for summary judgement based on and what is a judgement as a matter of law based on?

Answer 31

– Summary judgment: based on evidence that a party MAY introduce at trial – judgement as a matter of law: based on evidence that was ACTUALLY introduced at trial

Question 32

When is a motion for judgement as a matter of law made?

Answer 32

Usually at the close of the nonmoving parties keys, but it can be made anytime after all of the nonmoving parties evidence has been submitted, but before the case is submitted to the jury

Question 33

Why do most attorneys make a motion for judgement as a matter of law as a matter of course?

Answer 33

To preserve the right to renew the motion at the conclusion of the trial

Question 34

What was the former name for a renewed motion for judgement as a matter of law?

Answer 34

Judgement notwithstanding the verdict

Question 35

What is the timeframe to move for a renewed motion for judgement as a matter of law?

Answer 35

This must be done within 28 days after the entry of judgement

Question 36

What is the analysis that you should do for a renewed motion for judgement as a matter of law?

Answer 36

The same analysis as for a regular judgement as a matter of law of motion

Question 37

When a judge rules on a renewed motion for a judgement as a matter of law, what are the judge’s options?

Answer 37

Dash allow the judgement on the verdict to stand – order a new trial – direct the entry of judgement as a matter of law

Question 38

What is the timeframe for a motion for new trial?

Answer 38

It must be filed within 28 days of the entry of judgement

Question 39

A motion for a new trial is generally made as a form of alternative relief to what motion?

Answer 39

A renewed judgement as a matter of law of motion

Question 40

When would a motion for a new trial be appropriate?

Answer 40

Dash if the judge has committed reversible error – if the jury verdict was so excessive it shows that the jury misunderstood its duty or acted with extreme prejudice – if evidence of jury misconduct exists – if the verdict is against the clear weight of the evidence

Question 41

Is a court free to correct clerical mistakes or mistakes that come from oversight or omissions and judgments, orders, or other parts of the record?

Answer 41

Yes, it can do so on its own motion or on the motion of a party.

Question 42

If an appeal has been docketed with the appellate court and his pending, can the trial court correct a clerical mistake in a judgment, order, or other part of the record?

Answer 42

Only if it has the appellate court’s leave to do so